CONCURRING OPINION OF JUDGE JAMBREK

In their memorial the applicants also expressly complained of a violation of Article 2 of the Convention. The Court held that it was not necessary to consider the case under that Article given that it had found a violation of Article 8. I wish, nevertheless, to make some observations on the possible applicability of Article 2 in this case.

Article 2 states that “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save…” The protection of health and physical integrity is, in my view, as closely associated with the “right to life” as with the “respect for private and family life”. An analogy may be made with the Court’s case-law on Article 3 concerning the existence of “foreseeable consequences”; where – mutatis mutandis – substantial grounds can be shown for believing that the person(s) concerned face a real risk of being subjected to circumstances which endanger their health and physical integrity, and thereby put at serious risk their right to life, protected by law. If information is withheld by a government about circumstances which foreseeably, and on substantial grounds, present a real risk of danger to health and physical integrity, then such a situation may also be protected by Article 2 of the Convention: “No one shall be deprived of his life intentionally.”

It may therefore be time for the Court’s case-law on Article 2 (the right to life) to start evolving, to develop the respective implied rights, articulate situations of real and serious risk to life, or different aspects of the right to life. Article 2 also appears relevant and applicable to the facts of the instant case in that 150 people were taken to hospital with severe arsenic poisoning. Through the release of harmful substances into the atmosphere, the activity carried on at the factory thus constituted a “major-accident hazard dangerous to the environment”.

As to the applicability of Article 10, I am of the opinion that it could be considered applicable in the present case subject to a specific condition. This Article stipulates that “Everyone has the right … to receive … information and ideas without interference by public authority… The exercise of [this right] … may be subject to [certain] restrictions…” In my view, the wording of Article 10, and the natural meaning of the words used, does not allow the inference to be drawn that a State has positive obligations to provide information, save when a person of his/her own will demands/requests information which is at the disposal of the government at the material time.

I am therefore of the opinion that such a positive obligation should be considered as dependent upon the following condition: that those who are potential victims of the industrial hazard have requested that specific information, evidence, tests, etc., be made public and be communicated to them by a specific government agency. If a government did not comply with such a request, and gave no good reasons for not complying, then such a failure should be considered equivalent to an act of interference by the government, proscribed by Article 10 of the Convention.

partly concurring and partly dissenting opinion of judge Thór Vilhjálmsson

In principle, I agree with the conclusion and the arguments of the majority of the Commission in this case. The Court is of another opinion. Even though I would have preferred the case to be dealt with under Article 10 of the Convention, it is also possible for the Court to approach the questions raised by applying Article 8. I therefore voted with the majority as concerns that Article as well as Article 2 and Article 50 of the Convention.

partly Dissenting and partly concurring opinion of Judge Mifsud Bonnici

1. In paragraph 49 of the judgment the Court rejects the Government’s preliminary plea that the applicants had not exhausted the domestic remedies at their disposal, as they were obliged to do by Article 26 of the Convention.

2. The second sub-paragraph of that paragraph of the judgment contains the following passage:

“In reality, the complaint in the instant case was that information about the risks and about what to do in the event of an accident had not been provided, whereas an urgent application would probably have resulted in the factory’s operation being suspended .”(emphasis added)

3. Since the probable result of recourse to this domestic remedy would have been the suspension of the factory’s operation, I cannot envisage a more effectual remedy for the violations which the applicants claimed to have suffered, inasmuch as the lack of information by the authorities would have resulted in the suspension of the factory’s operation. During the trial all the necessary information would have had to be supplied in court and, of course, the violations of Article 8 would also have been remedied.

4. As to the criminal action, this too, if successful, could have led to a civil action for damages which the Italian legal order places at the disposal of every person who has been a victim of an offence ( delitto ) of any shape or form.

5. It is clear therefore not only that the applicants had at their disposal a number of actions at law according to the Italian legal order but also that, unfortunately, they did not have recourse to any of those actions. I am therefore of the opinion that the Government’s preliminary objection should have been allowed.

6. Since the great majority of my colleagues held otherwise, I had no option but to join them in the other operative parts of the judgment.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 116/1996/735/932. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is available from the registry.